By Lehlohonolo Lehana.
Gauteng Cogta MEC Lebogang Maile (centre) at a press briefing on 23 March 2020 to announce administrators for the recently dissolved Tshwane city council. Picture: @GDCoGTA/Twitter.
The Constitutional Court (ConCourt) on Monday ruled that the Gauteng provincial government’s decision to place the City of Tshwane under administration last year was unlawful.
The apex court upheld the High Court’s April 2020 decision to set aside the province’s decision to place the council under administration. The Supreme Court of Appeal in October 2020 also agreed with the High Court.
Gauteng Premier David Makhura, his executive council and Gauteng MEC for Human Settlements, Urban Planning and Cooperative Governance and Traditional Affairs Lebogang Maile appealed to the Constitutional Court, as did the ANC and the EFF in separate applications.
The High Court ordered ANC and EFF councillors to attend city meetings, however, the Constitutional Court set this order aside. It did order that Maile appoint a person or a committee to investigate the cause of the council’s deadlock and make a recommendation as to an appropriate sanction.
The DA has run the municipality since 2016 after forming a coalition with smaller parties and striking a deal with the EFF.
However, it has been plagued by instability and relations with the EFF soon soured.
Last year, the council also failed to pass its adjustment budget, which had to be done at the beginning of March, among other legislated functions, after council meetings failed to quorate as the ANC and EFF walked out.
The Gauteng provincial government then placed the city under administration in March 2020.
“The walkouts created an exceptional set of circumstances. The fact that elected officials were unable to be collegial and respectfully engage and disagree with one another is troubling. The fabric of our democracy has been threatened,” reads acting Justice Rammaka Mathopo’s judgment, with Justices Khampepe, Majiedt, Theron, and Victor concurring.
Mathopo said it was necessary for the provincial government to engage with Tshwane’s Speaker to determine whether the council fulfilled its executive functions in, “… the spirit of co-operative governance and intergovernmental relations”.
“Section 41(1)(f) of the Constitution forbids the provincial government and any sphere of government from assuming any power or function except those conferred on them in terms of the Constitution.
“The provincial government was constitutionally obliged to investigate and provide solutions to the causes of unfulfilled obligations. In my view, engaging with the Speaker and her response could have easily assisted the Gauteng Provincial Government to resolve the issues plaguing the municipality.”
He said the provincial executive council’s actions in placing the municipality under administration, “… does not conform to the Constitution.
Meanwhile the Democratic Alliance (DA) has called for Gauteng cooperative governance MEC Lebogang Maile to be fired after the Constitutional Court (ConCourt) on Monday ruled that the provincial government’s decision last year to place the City of Tshwane under administration was unlawful.
Tshwane executive mayor Randall Williams welcomed the ConCourt’s ruling, saying the DA would ensure Maile is personally held to account for all legal costs involving his appeal of the case, and for wasting taxpayers’ money.
“MEC Maile must also be fired for his role in this,” Williams said.
Williams said the ConCourt’s majority ruling – which upheld earlier judgments by the Pretoria High Court and the Supreme Court of Appeal (SCA) last year – vindicated the DA’s stance that Maile’s decision to place Tshwane under administration from March to October last year was unwarranted.
There was no justification for removing elected DA councillors from their positions and replacing them with administrators who left the city in chaos and near financial ruin,” Williams said in a statement.
He reiterated the DA’s view that the dissolution of the council was a politically motivated “power grab” on the part of Maile and the ANC to regain control of Tshwane after it lost the metro during the 2016 municipal elections.